* NEWS RELEASE * POLICE OFFICER FOUND TO HAVE ACTED IN SELF-DEFENSE IN SHOOTING MAN ARMED WITH A LOADED ASSAULT RIFLE

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1 * NEWS RELEASE * POLICE OFFICER FOUND TO HAVE ACTED IN SELF-DEFENSE IN SHOOTING MAN ARMED WITH A LOADED ASSAULT RIFLE FOR IMMEDIATE RELEASE August 24, 2009 CONTACT: Stephanie E. Hulsey (831) Monterey County District Attorney Dean D. Flippo announced today that his office has found that Salinas Police Department Officer Louis Plunkett was acting in self-defense and defense of others when he fired his duty weapon at Philip Dorado as Mr. Dorado pulled a loaded assault rifle from his waistband on August 31, The District Attorney s Office will not file any criminal charge against Officer Plunkett. SUMMARY OF FACTS At approximately 11:22 a.m. on August 31, 2008, a citizen called 911 to report that a suspicious person was hiding in the bushes near the ATM machines by the Wells Fargo Bank at the intersection of Natividad Road and Arcadia Way. The reporting party said that the subject was wearing a red-hooded sweatshirt and was covering his face. Officer Plunkett was dispatched to the scene at approximately 11:24 a.m. While Officer Plunkett was en route, Officer Bough informed County Communications of an armed robbery that occurred on August 19, 2008, in which the suspect was also hiding in the bushes, was wearing a red sweatshirt with the hood up and covering his face, and had a shotgun in his waistband. 1 Officer Bough later said that when he heard the dispatch on August 31, he thought the subject was the suspect in his robbery case due to the similarity of the suspect s behavior and dress. Officer Plunkett had been an officer with the Salinas Police Department for two and a half years. He had a ride along, his brother Bradley Plunkett. The CAD log indicates that Officer Plunkett was on scene at 11:26:20; the CAD log reflects that the shots fired radio call from Officer Plunkett came in at 11:27:59. When Officer Plunkett arrived, he saw the subject later identified as Philip Michael Dorado wearing a red hooded sweatshirt with the hood up over his head. Mr. Dorado was near the sound wall on the south side of Arcadia west of the intersection with Natividad. Officer Plunkett got out of his patrol car to contact Mr. Dorado. 1 SPD report # documents the investigation of the August 19 th robbery. In that report, the clerk who was robbed described the suspect as a Hispanic male about 24 years old, 5 9 tall, and 160 pounds. Another witness described the suspect as a Hispanic male about 20 years old, 5 10 tall and about 160 pounds. Mr. Dorado was 21 years old, 5 9 tall, and 155 pounds at the time of his death. Officers booked a pair of black gloves, apparently found with Mr. Dorado, into evidence with his clothing.

2 Officer Plunkett called to Mr. Dorado, asking him to step forward and sit down on the curb. Officer Plunkett believed that Mr. Dorado may have been the suspect of the armed robbery that had been broadcast by Officer Bough. 2 As Mr. Dorado stepped forward, Officer Plunkett saw him put his right hand into his waistband, revealing the black grip handle of a weapon. As Mr. Dorado pulled an assault rifle from his waistband, Officer Plunkett yelled at Mr. Dorado to put his hands up and drop the gun. Officer Plunkett continued to yell, Stop! Drop the gun, drop the gun as Mr. Dorado pulled the entire length of the rifle from his waistband. There was no doubt in Officer Plunkett s mind that Mr. Dorado was pulling the rifle out to shoot at him. He was fearful for his own life as well as for that of his brother, who was sitting in his patrol car directly behind him. Officer Plunkett fired his duty weapon, a Sig Sauer P220 handgun, at Mr. Dorado until his gun went empty, and he reloaded. Mr. Dorado was now lying on the ground with the rifle nearby. Mr. Dorado picked up the rifle and Officer Plunkett said that Mr. Dorado then leveled it at me. Officer Plunkett again fired his duty weapon at Mr. Dorado. After the second volley of shots, Mr. Dorado rolled over onto his back, and his hands were up by his face. Officer Plunkett held Mr. Dorado at gunpoint until other officers arrived. A total of caliber casings and 2 empty Sig Sauer.45 caliber magazines were recovered from the scene. Officer Brian Johnson responded to the call believing that it was likely an armed robbery. En route, he heard Officer Plunkett advise that shots had been fired. When he arrived at 11:29:16, Officer Johnson saw the assault rifle lying near Mr. Dorado s ribcage, and stepped on Mr. Dorado s wrist to prevent Mr. Dorado from grabbing the rifle as Officer Plunkett moved it out of Mr. Dorado s reach. Officer Johnson helped Officer Plunkett to move Mr. Dorado onto the sidewalk, where they checked Mr. Dorado for additional weapons. Mr. Dorado was breathing and had a pulse. When Officer Elordi arrived shortly thereafter, he did not feel a pulse on Mr. Dorado. Officers Elordi, Johnson, and Plunkett performed CPR until Salinas fire personnel arrived to provide medical attention. Photographs at the scene indicate that Mr. Dorado s rifle, a DC Industries AK-47 style 7.62X39 caliber assault rifle with a detachable box magazine, was loaded. The plastic magazine from the rifle was damaged during the incident, causing the unspent 7.62 caliber cartridges to eject onto the ground. A total of unspent caliber cartridges were recovered at the scene; four were still in the rifle. When booked into evidence, the stock was in the folded position and the safety lever was in the fire position. A check of the serial number through the NCIC CLETS computer system found the weapon to be unregistered, but ATF records revealed that Mr. Dorado had purchased the rifle in North Carolina on April 19, Officer Herrier test fired the rifle, which functional. Mr. Dorado was transported to Natividad Medical Center, where he died from his injuries. Pathologist Dr. John R. Hain, M.D., concluded Mr. Dorado died as a result of multiple (8) gunshot wounds. Two of the gunshot wounds entered the front of the body with the right knee and left thigh flexed, possibly sustained in a crouching position. Two gunshot wounds entered the back of the body, one through the back of the lower right thigh and the other through the back of the right shoulder, both of which exhibited upward trajectories, possibly indicating they were sustained as the decedent turned away and went down to the ground. Four other gunshot wounds appeared to have been the result of bullets that had been flattened by ricochet against hard flat surfaces. Two of the 2 Officer Plunkett believed that the robbery referred to by Officer Bough had occurred earlier on August 31, although it had actually occurred on August 19, 2008.

3 bullets recovered from the body exhibited flattened profiles with striations and black coloration, consistent with ricochet off of asphalt. The other two slugs exited the body and were not recovered at autopsy. Toxicology results indicated that Mr. Dorado did not have alcohol or drugs in his system at the time of his death. Detective Kyle Kimm interviewed Bradley Plunkett. Bradley said that while they were en route to the call, he heard radio traffic concerning a suspect wearing a red sweatshirt who might have gone into a store with a shotgun, and Officer Plunkett told him that they may be responding to a robbery in progress. When they arrived, they saw Mr. Dorado standing with his back against the sound wall on Arcadia Way with the hood of his red sweatshirt pulled up over his head. Bradley remained in the car while Officer Plunkett approached Mr. Dorado. Bradley saw Mr. Dorado pull what appeared to be a shotgun from his waistband. Officer Plunkett then drew and fired his handgun. Bradley thought that about eight shots were fired; there were four initial steady gunshots, a short pause, and then four more shots. Bradley s view of the shooting was partially obstructed by Officer Plunkett. It was difficult to hear whether anything was said because the windows of the patrol vehicle were rolled up. Officer Bough arrived at 11:45. He saw that the red sweatshirt that had been cut off of Mr. Dorado had gold and white stripes and a 49ers emblem, like the sweatshirt worn by the suspect in the armed robbery that he had investigated on August 19, He also saw Mr. Dorado s assault rifle, which appeared similar to the one that he had seen on the video of the robbery that he had investigated. Mr. Dorado s mother later said that Mr. Dorado had a black Honda, which was the type of vehicle described as the getaway vehicle in the August 19 th robbery. A witness identified as 1EV said that she was in front of the business at 1909 Natividad Road, and noticed a Hispanic man wearing a red-hooded sweatshirt standing next to some bushes that were in the business complex on the northwest corner of Natividad Road and Arcadia. Witness 1EV felt the man was acting suspiciously; he was looking around very nervously and watching people coming and going from the shopping area. He had his hood up on his head, somewhat covering his face, and his hands appeared to be in the pockets of his sweatshirt. Witness 1EV saw a patrol vehicle turn onto Arcadia Way from Natividad Road and saw Officer Plunkett get out of the vehicle. She heard Officer Plunkett yell something at the male, but could not understand what he said because she is Spanish speaking. It appeared that the male was not listening to what Officer Plunkett was instructing him to do. Witness 1EV then saw Mr. Dorado turn towards the officer and away from her, at which point she could no longer see the front of Mr. Dorado. She saw Officer Plunkett fire at Mr. Dorado, and then saw Mr. Dorado lying on the ground, at which time she ran into 1909 Natividad Road to tell the employees what had occurred. A witness who was walking out of Great Clips said that he heard 8-10 gunshots coming from the intersection. When he looked to his right, he saw Officer Plunkett yelling, Put the gun down! Put the gun down! two to three times. The witness could not see at whom Officer Plunkett was yelling because of bushes and trees in the area. When the witness made his way to Arcadia Way, Officer Plunkett was still pointing his handgun at the subject (Mr. Dorado) and ordering him not to move; several other officers then arrived and attended to Mr. Dorado.

4 Witness 2EV was an off-duty officer from the Soledad Police Department who was in a restaurant in the shopping center when he heard about 8-9 gunshots. He came out of the restaurant and saw Officer Plunkett reloading his firearm while giving commands, such as Stay down, don t move to Mr. Dorado, whom he could not see due to a building blocking his view. He then heard about three more shots. Witness 2EV then walked to Officer Plunkett and identified himself as an off-duty police officer. Mr. Dorado was on the ground and appeared to be breathing, and there was a black gun next to him. Witness SS1 said that she was facing eastbound on Arcadia, waiting at a red light at Natividad Road when she saw Officer Plunkett make a left hand turn on to Arcadia. Witness SS1 saw Officer Plunkett exit his vehicle, and watched in her rear-view mirror as he approached Mr. Dorado with his handgun displayed. Mr. Dorado reached into the left portion of his sweatshirt and pulled something black out from his waistband, but SS1 could not identify what it was. She then heard Officer Plunkett fire about 6 shots, saw Mr. Dorado fall to the ground, and heard about 6 more shots. A witness facing northbound at the intersection of Natividad Road and Arcadia Way heard about 9 gunshots. She looked to her left and saw Officer Plunkett in the middle of the street, holding his handgun. She believed that the officer was talking or yelling at someone, but could not hear what he was saying. When she drove past on Natividad Road, she saw a male lying on the ground. KA1 and KA2 were shaking at the scene and had difficulty speaking. They were interviewed at the scene and again at their home 3. KA1 said that she and her husband were driving westbound on Arcadia and saw Mr. Dorado in the bushes. He had a hooded jacket on. KA1 saw Officer Plunkett s gun pointed at Mr. Dorado. Mr. Dorado looked like he was going to run, and KA1 saw him reach into his jacket. KA1 then saw Officer Plunkett shoot Mr. Dorado. KA1 heard four shots, a pause, and another four shots. She said that she heard Mr. Dorado say I don t have a gun or I don t have the gun after he was shot and to call an ambulance. KA1 said that several other police officers arrived and that a male was recording the scene with his cell phone as an officer was taking people s names. KA1 did not believe that the entire incident was recorded because when KA1 arrived, the only other person nearby was a male in a blue vest (not the male with the cell phone.) KA2, who was driving, said that he wasn t actually paying attention until he heard the shots. KA2 said that he heard Officer Plunkett tell Mr. Dorado to keep his hand away from the gun after the shots had been fired. KA2 said that another officer arrived and kicked the shotgun out of the way. KA2 parked his vehicle because KA1 is medically trained, and he thought her assistance may be needed. KA2 said that by the time he and KA1 left the scene, there was a subject recording with his cell phone, but he did not know when the subject had arrived. None of the witnesses interviewed by the police disclosed the existence of a cell phone recording of the incident. Although there are several surveillance cameras in the area, none of them captured the shooting due to their positioning and/or the fact that they do not constantly record. 3 There are some inconsistencies between the statements KA1 and KA2 made at the scene and later at their home. The narrative reflects primarily the later, more detailed, statement. At the scene, KA1 and KA 2 said they heard Officer Plunkett say Drop it and Put your hands away from the gun.

5 Mr. Dorado did not have any identification on him at the time of the incident; however, Detective Wynne was able to contact Mr. Dorado s mother through Mr. Dorado s cell phone. Mr. Dorado s mother said that Mr., Dorado had used AKs in Iraq, where he served four tours of duty before being discharged in March, Mr. Dorado s mother said that her son had been hanging around with childhood friends who were bad influences or up to no good. She also said that he had been having anger management problems since returning from Iraq, and was seeing a doctor in Salinas whom she believed was affiliated with the Veterans Administration. Mr. Dorado s wife said that she had not seen Mr. Dorado since 10:30 that morning. On July 1, 2009, Christina Maryannis, who was reported to have been dating Mr. Dorado s brotherin-law, told District Attorney Investigator Tracey Spencer that she had cell phone footage of the shooting involving Mr. Dorado that she wanted provide to the District Attorney s Office. A meeting was arranged for July 3 rd, 2009 at 11:00 a.m. because that was the soonest available time Ms. Maryannis had to meet. On July 3 rd, 2009, at 10:45 a.m., James Bustamante, an attorney representing the Dorado family, called DAI Spencer and cancelled the meeting. He said that he would meet with the Dorado family to discuss the video, and would then contact the District Attorney s Office. On July 31, 2009, Mr. Bustamante told Assistant District Attorney Stephanie Hulsey and DAI Spencer that the cell phone video clip did not depict the shooting itself because it commenced after the shooting had occurred, and was therefore inconsequential to the District Attorney s review. As of today, Mr. Bustamante has not provided the video to the District Attorney s Office. ADDITIONAL INFORMATION When Officer Arensdorf collected Mr. Dorado s cell phone from the scene, he noticed that the background photograph on the inside screen was a photo of a male in a white T-shirt holding a black AK style assault rifle similar to the one at the scene. The last incoming text message on the phone was received at 10:07 a.m. and read, ready when you are. The last outgoing message was sent to the person who had sent the aforementioned message and read morning nauti boy, today is the day. The date and time of this message could not be determined. Mr. Dorado had started as a loss prevention officer at Macy s on August 25, His supervisor had to counsel him regarding use of profanity within the loss prevention office. One of his coworkers said that Mr. Dorado seemed like a very troubled young man. He was mean just from the instant he came in there. The co-worker said that Mr. Dorado told her that he lived with his mother, but wished to return to North Carolina. The co-worker said that Mr. Dorado turned into a different person when she raised the subject of marriage and it was clear that he was not happy in his marriage. The co-worker, who has a degree in psychology, believed that Mr. Dorado may have suffered from Post Traumatic Stress Disorder. Mr. Dorado had told her that he had a psychological evaluation scheduled through the military for September 2, LEGAL ANALYSIS The sole purpose of this review is to determine whether Officer Louis Plunkett should be charged with a criminal offense in connection with the death of Phillip Dorado. The District Attorney s

6 authority is determined by the state constitution and by statute. The District Attorney has no authority under either source to make a decision about civil liability. In making a decision about criminal liability, the District Attorney s Office has traditionally followed the guidance of its professional organization, the California District Attorneys Association. The CDAA s publication Uniform Crime Charging Standards urges prosecutors to file criminal charges only if there is a probability of conviction by an objective fact-finder hearing the admissible evidence. The admissible evidence should be of such convincing force that it would warrant conviction of the crime charged by a reasonable and objective fact-finder after hearing all the evidence available to the prosecutor at the time of charging and after hearing the most plausible, reasonably foreseeable defense that could be raised under the evidence presented to the prosecutor. Murder, as defined in Penal Code Section 187, is the unlawful killing of a human being with malice aforethought. The Penal Code defines specific situations in which the killing of a human being is lawful. For peace officers, Penal Code Section 196 is the most pertinent provision. It provides in relevant part that: Homicide is justifiable when committed by a public officer when necessarily committed in overcoming actual resistance to the execution of some legal process, or in the discharge of any other legal duty The Court of Appeals has established guidelines to be used in applying this code section. The test for determining whether a homicide was justifiable under Penal Code Section 196 is whether the circumstances reasonably created a fear of death or serious bodily harm to the officer or to another. Martinez v. County of Los Angeles (1996) 47 Cal.App.4 th 334 at 349. The Court elaborated on this test of reasonableness noting it is an objective one, viewed from the vantage of a reasonable officer on the scene. It is also highly deferential to the police officer's need to protect himself and others. Based on the standards established in the Martinez opinion, the question is whether a reasonable peace officer would have believed he needed to resort to deadly force if he were in the same position as Officer Plunkett. Although federal civil rights law suits against police officers alleging excessive use of force deal with civil liability and not criminal liability, they are still useful as pronouncements by courts of law about how peace officers are expected to conduct themselves. Two decisions by the United States Supreme Court apply to this case. In Tennessee v. Garner (1985) 471 U.S. 1, at page 10, the Court made these observations about assessing a peace officer s use of deadly force: Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given. A few years after this decision, the U.S. Supreme Court cautioned trial courts against hindsight analysis of an officer s decision to use deadly force. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments -- in circumstances that are tense, uncertain,

7 and rapidly evolving -- about the amount of force that is necessary in a particular situation. Graham v. Conner (1989) 490 U.S. 386, at page 396. In this case, Officer Plunkett responded to what he believed may have been a robbery in progress. A citizen was so concerned after observing Mr. Dorado hiding in the bushes and concealing his face near the Wells Fargo Bank that he called 911. Mr. Dorado s appearance and demeanor matched that of a suspect in a robbery that had occurred on August 19. The available evidence indicates that when Officer Plunkett attempted to contact Mr. Dorado, Mr. Dorado turned towards Officer Plunkett and pulled an AK-47 type assault rifle out of his waistband despite commands by Officer Plunkett to stop and to drop the gun. There was no doubt in Officer Plunkett s mind that Mr. Dorado was pulling the rifle out to shoot at him, and he was fearful for his own life as well as for that of his brother. Officer Plunkett s fears were objectively well grounded; the fact that Mr. Dorado s assault rifle was fully loaded and the safety lever was in the fire position confirmed that he posed a significant threat to the public. Officer Plunkett s recitation of the events that led to the shooting is corroborated not only by his brother, but by independent witnesses who were in the area. An attorney for Mr. Dorado s family has indicated that although he has access to a video taken by a cell phone of the scene, it does not depict the shooting; the video has not been provided to the District Attorney s Office for review despite requests. When Mr. Dorado pulled out an assault rifle, which he refused to drop despite Officer Plunkett s directions, and leveled it at Officer Plunkett even after he was on the ground, Officer Plunkett was justified in using deadly force against Mr. Dorado in self-defense, in defense of his brother, who was in the line of fire of Mr. Dorado, and in defense of other members of the community in the vicinity. The fact that Mr. Dorado s assault rifle, illegal to possess in California, was fully loaded indisputably establishes the deadly threat that he posed to Officer Plunkett as well as those doing business at the shopping center. No criminal charge will be filed against him.